92 Decision Citation: BVA 92-11789
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-53 937 ) DATE
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THE ISSUE
Entitlement to service connection for a back condition.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Bradley J. Ipema, Associate Counsel
INTRODUCTION
The appellant served on active duty from July 1954 to July
1957.
This matter came before the Board of Veterans' Appeals (the
Board) from a decision of Cleveland, Ohio, Regional Office
(VARO), in May 1990, which denied the appellant's claim
filed in June 1989. The appellant was notified of the
denial in June 1990. The appellant's claim was again denied
by rating action of July 10, 1990. The appellant was
notified of this denial by letter dated July 13, 1990. A
notice of disagreement was received on July 15, 1991, which,
although beyond the period for appeal, was accepted as a
timely appeal by VARO. The statement of the case was issued
on July 31, 1991. The substantive appeal was received at
VARO in August 1991. A hearing was held before a hearing
officer in November 1991.
The appeal was received at the Board in January 1992. The
appellant has been represented throughout this appeal by
AMVETS. The representative submitted an informal hearing
presentation in January 1992.
In his personal hearing, conducted on November 21, 1991, the
appellant raised the issue of entitlement to service
connection for an ear condition and entitlement to a
permanent and total disability rating for nonservice-
connected disabilities. The claims folder contains a
letter, dated August 8, 1991, in which VARO instructs the
appellant to submit additional evidence to support his
claims. However, it is not clear if the the issues of
entitlement to service connection for an ear condition and a
permanent and total disability rating have been further
developed by VARO, but in any event, they are not before the
Board at this time for decision. These issues are not
directly related to the issue on appeal, and do not fall
within the purview of Myers v. Derwinski, 1 Vet. App. 127
(1991) or Harris v. Derwinski, 1 Vet. App. 180 (1991).
These issues are referred to VARO for such development as it
may deem appropriate.
REMAND
The appellant is claiming entitlement to service connection
for a back condition. The appellant has indicated that he
was treated for his back condition in a hospital in Japan
while in service. However, the service medical records do
not include records of such treatment. By letter dated
October 3, 1989, the appellant was requested to submit
dates, names and locations of places where he was treated
for his back disorder. In a letter dated October 10, 1989,
received at VARO on October 27, 1989, the appellant
indicated that he was under the command of a Major Black at
"Chezudor Island," and that he was treated at a naval
hospital in Yokahama, Japan in late 1955 or early 1956. The
appellant also submitted a Department of Veterans Affairs
(VA) medical report, dated November 1988, in which the
physician indicated that the appellant's service records
were destroyed in the fire at the St. Louis Depository, but
that copies were recently found. In his personal hearing,
conducted in November 1991, the appellant again stated that
he was sent to Japan for 30 days for treatment of his back
condition. The claims folder contains no records of further
attempts by VARO to locate the additional information
identified by the appellant which is not in the service
medical records on file.
In the statement of the accredited representative, received
in January 1992, the appellant, through his representative
contends that VARO should have obtained the appellant's 201
personnel file or request that he obtain it to identify any
transfer or shipping orders, or any other evidence which
would support his claim. In the informal hearing
presentation, submitted in January 1992, the appellant's
representative also contends that VARO was incorrect in not
obtaining information as identified by the appellant as to
treatment he received during service. The representative
specifically requests that VARO attempt to obtain the
information missing from the service medical records. The
Board agrees that VARO should attempt to obtain and consider
such information. The VA has a statutory duty to assist the
appellant in obtaining records pertinent to his claim.
38 U.S.C.A. § 5107(a) (1991).
Accordingly, the case is REMANDED to the agency of original
jurisdiction for the following:
1. VARO should attempt to obtain any
records of treatment the appellant
received for his back condition while in
service. Specifically, VARO should
attempt to locate any records of
treatment the appellant received at a
naval hospital in Yokahama, Japan in late
1955 or early 1956. If the attempt is
unsuccessful, any efforts expended should
be documented.
When the above development has been completed, VARO should
readjudicate the appellant's claim. If the benefits sought
on appeal are not granted, the appellant and his
representative should be provided a supplemental statement
of the case and should be afforded an opportunity to
respond. The record should be returned to the Board for
further appellate consideration, if in order.
No action by the appellant or his representative is required
until further notice is received.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) MATTHEW J. GORMLEY, III
KENNETH R. ANDREWS, JR.
*38 U.S.C.A. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the
Chairman of the Board, to proceed with the transaction
of business without awaiting assignment of an
additional Member to the Section when the Section is
composed of fewer than three Members due to absence of
a Member, vacancy on the Board or inability of the
Member assigned to the Section to serve on the panel.
The Chairman has directed that the Section proceed
with the transaction of business, including the
issuance of decisions, without awaiting the assignment
of a third Member.
Under 38 U.S.C.A. § 7252 (1989) (formerly § 4052, recodified
in 1991), only a decision of the Board of Veterans' Appeals
is appealable to the United States Court of Veterans
Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal.